Thangasami Pillai vs Ramachandran Pillai and others

Ganapatia Pillai, J.—The only point taken in the second appeal relates to the applicability of S. 9-A of Madras Act IV of 1938 to the

mortgage in suit. The mortgage in suit is an anomalous mortgage. It has been held in the recent Full Bench decision in Kanthalavalli Achi v.

Ayyadurai Odayar 74 L.W. 544 (F.B.), that S. 9-A of the Madras Agriculturists Relief Act applies not only to usufructuary mortgages as defined

in S. 58 of the Transfer of Property Act but also to other mortgages which involve a transfer of possession of the property to the mortgagee.

Consequently the Full Bench decision directly governs this case and the decree of the lower appellate Court is therefore correct. But Mr.

Parasaran requested me to grant permission for raising an additional ground, namely, that even if the mortgage in question is a mortgage which

involves transfer of possession of the property to the mortgagee, S. 9-A can only apply to a case where the suit is laid for redemption of the

mortgage. As authority for this position he relied on the Bench decision in E. Rajagopalan Chettiar and Another Vs. Sina Ana Ishack Rowther and

Others, and Visalakshi Achi v. Mayalagu 68 L.W. 630. The latter case was not strictly a case for redemption because the suit was laid for rent

due upon the mortgaged property where the mortgagee as lessor had leased back the mortgaged property to the mortgagor. To such a case the

Bench held that S. 9-A would not apply. In E. Rajagopalan Chettiar and Another Vs. Sina Ana Ishack Rowther and Others, , also, the facts were

different because there the mortgaged property which was situated in an estate had been taken over by the State under the Abolition Act and the

mortgage as such ceased to exist and in its place the parties had only the right to compensation money deposited by the Government. In working

out the rights of the parties to the compensation money, the Bench ruled that S. 9-A as such will have no application. No doubt certain

observations in that case were relied on by Mr. Parasaran and they are based on the unreported decision of Govinda Menon and Ramaswami JJ.

in A. S. No. 462 of 1950. The purport of the observations relied upon by the learned Judges were that S. 9-A could not be availed of by a

defendant to a suit where a mortgagee brings a suit for sale because S. 9-A expressly states that it would only apply to a suit for redemption by a

mortgagor. In Visalakshi Achi''s Case 68 L.W. 630, the principle has been more guardedly expressed, if I may say so with respect, in the

following passage:

The learned Judge after a consideration of the relevant provisions of S. 9-A and the scheme of the enactment came to the conclusion that it was

only to a suit which involved redemption of the mortgage that these provisions could be applied.

The Bench was referring to the decision of T.V. Srinivasaraghava Aiyangar Vs. M. Narasimha Mudaliar, With all respect, in my opinion, that

lays down the rule applicable to this case, because in every case where an anomalous mortgagee sues for recovery of the mortgage amount by sale

of the mortgaged property, the suit is one brought for sale of the mortgaged property which involves an opportunity to the mortgagor to redeem by

the date fixed for redemption. Such a suit involves an opportunity to the mortgagor to redeem the mortgage within the time fixed by the Court and

this suit falls within the class of suits mentioned in Visalakshi Achi''s Case 68 L.W. 630. Even if I were inclined to give, permission to the appellant

to raise this new ground, the point will have to be found against him. But since I have declined to give permission, it is not necessary for me to

express any considered opinion on this question. The second appeal is dismissed. No costs. No leave.